Keeping Up With The Candidates, Primary Edition

Just five days to go until Tuesday’s primary, and things have not settled.

Not that anything happened, like one of the perceived leaders of the GOP race being accused of being present and participating in the “legend”ary Manoogian mansion party by someone willing to put his name on it. Mike Cox still denies there ever was a party, and has attacked the affiant, a biker who said he was working security for the affair, by saying he has a rap sheet. (A biker with a rap sheet?! What’s this world coming to!!*) Then he questioned the timing of it. Then he compared himself to Shaquille O’Neal. Each time, the defense gets bolder. The tin hats may have switched sides.

* Sons of Anarchy on FX! Best show on TV not involving the 1960s advertising industry!

As for the campaigns, for weeks now, polling has been so scattershot that many weeks, I’ve opted to not even link to it. The one thing that had been consistent, for the most part, was Andy Dillon’s lead in the Democratic race. Note I said “was.”

This week, the Detroit Free Press and four TV stations commissioned a poll that showed that Lansing mayor Virg Bernero has not only pulled ahead, but may be pulling away. Things seem somewhat bleak for Dillon’s campaign, as Michigan political guru Bill Ballanger of Inside Michigan Politics told Frank Beckman on WJR-AM Bernero will win unless Dillon makes a dramatic push. Considering Bernaro’s campaign appears to be low on cash, it’s not an impossible scenario.

The latest poll shows Bernero with an eight point lead over Dillon, 40-28, with 32 percent undecided. Of course, two weeks ago, polling showed Dillon with a 20 point lead, so perhaps we should just wait and see what happens on Tuesday.

MLive asked both candidates for ideas on fixing Michigan’s economy/tax system. Bernero said he wants to create a state bank of Michigan that will loan money to small businesses. Dillon wants to create a coalition of business, labor, teachers and health care industry leaders to create a better tax policy.

On the GOP side, all of the candidates are making their final appeals to potential voters, who appear to not really care that much. Secretary of State and Mike Bouchard running mate Terri Lynn Land expects that only about 1.7 people will actually go to the polls on Tuesday, or, about 23 percent of registered voters. Cox expects only about 700,000 people to vote in the GOP primary.

As the final ads roll out, Pete Hoekstra is fed up with what he calls “factually incorrect attack ads”:

“Attorney General Mike Cox and his special-interest allies will stop at nothing to mislead voters and falsely attack Pete Hoekstra’s record,” said spokesman John Truscott. “Mike Cox should immediately call on these shadowy third-party groups to end these false attack ads and start being honest with the voters of Michigan.”

In May, he successfully convinced three west Michigan stations to drop ads run by “Americans With Job Security” after he showed the ads made false claims. The most recent ad, run by Michigan Business United, said Hoekstra is “absent on right to life” among other things. Not surprisingly, Cox spokesman Nick DeLeeuw denied the campaign’s involvement.

New endorsements this week go to Rick Snyder, who won the public support of Ford board chairman Bill Ford Jr., Hoekstra and Andy Dillon. The latter two were endorsed by The Grand Rapids Press.

Finally, both Detroit papers are pumping out informational stories designed to help We, The Voters, decide based on the issues. (Ha! Like any election is ever won on the issues!) If something doesn’t appear for one candidate but does for the other, it’s either because the Freep hasn’t run the Democratic analyses yet, or I couldn’t find Pete Hoekstra’s Detroit News Q&A through the paper’s awful search function which doesn’t rank articles in chronological order.

Andy Dillon: Positions (Freep)/ Q&A (News)

Virg Bernero: Positions (Freep)/ Q&A (News)

Rick Snyder: Positions (Freep)/ Q&A (News)/Analysis (Freep)

Mike Cox: Positions (Freep)/ Q&A (News)/ Analysis (Freep)

Pete Hoekstra: Positions (Freep)/ Analysis (Freep)

Mike Bouchard: Positions (Freep)/ Q&A (News)/ Analysis (Freep)

Dr. Tom George: Positions (Freep)/ Q&A (News)/ Analysis (Freep)

Talkin’ #$*@

So, Goldman Sachs is going to start screening employee e-mail, hunting for words that could come back to haunt them.

They’re not searching for evidence of financial wrongdoing or irresponsibility (I suspect because any e-mail which tries to define a credit default swap would be so boring no one would bother using any of it in a sound byte on television). They’re looking for dirty words, after being quoted a dozen times by Sen. Carl Levin, D-Mich., who quoted from one of the company’s e-mails about a “sh***** deal.”

And yes, Goldman Sachs will be searching for incomplete cuss-words that include asterisks.

See NPR’s story here.

If you’re in doubt about what kind of words, four-letter or not, should never be in e-mail, be sure to click on the link to “23 things not to say in e-mail,” at the end of the Goldman story. Sort of reminds me of the late, great George Carlin’s seven words you can’t say on television.

The price of wrongful conviction: $2 million

Claude McCollum, who spent more than two years in prison for a murder he didn’t commit, has settled his wrongful-conviction suit for $2 million, according to a report in this morning’s Lansing State Journal.

McCollum was convicted four years ago of murdering a Lansing Community College professor in a classroom. Video evidence that showed him sleeping in another part of the campus when the murder occurred never made it to the jury. Later, another man confessed to the murder.

After McCollum was released from prison, he celebrated his freedom by suing everyone who had anything to do with his arrest and conviction. See, The Michigan Lawyer, Will patience pay off in civil suit against prosecutors and police?

Most defendants were dismissed from the case. From the LSJ:

The settlement, reached late Tuesday, brings an end to two and a half years of litigation that eventually centered on whether Lansing Community College police Detective Rodney Bahl hid evidence of McCollum’s innocence.

Three attorneys, Hugh Clarke, Jr., Thomas Wuori and E. Thomas McCarthy, represented McCollum in the civil suit.

They’ve structured the settlement to be paid out over a number of years. Says Clarke in the LSJ:

We have taken all the steps we can to protect him from any of the vultures and con-artists.

Don’t even apply – it’s locked up, it’s not there, and he won’t have it.

DMBA rates Wayne County judge candidates

The Judicial Candidate Evaluation Committee of the Detroit Metropolitan Bar Association has rated judicial candidates for contested elections in the courts of Wayne County for the August primary.

The Committee is comprised of 31 attorneys from the Detroit Metropolitan area and evaluates the fitness of each candidate for judicial office based upon the candidate’s legal ability (scholarship, analysis, judgment, clarity of expression), trial experience, integrity, honesty, judicial temperament, and reputation, without regard to party affiliation, race or creed.

Ratings are given after review of the candidate’s completed questionnaire and/or an in-person interview conducted with an Interview Panel of the Committee.  The ratings refer only to a candidate’s qualifications for the position of judge in the court that the candidate is seeking, and do not in any way refer to a candidate’s qualifications as a practicing attorney.  The ratings reflect the collective opinion of the Committee and not the Detroit Metropolitan Bar Association as a whole.

The ratings for individual candidates are set forth below.  Additional information, including links to the written questionnaire responses provided by the judicial candidates to the JCEC, can be found at http://www.detroitlawyer.org/topic.jsp?topicId=809 .

The Judicial Candidate Evaluation Committee has four categories of ratings:  Outstanding, Well Qualified, Qualified, Not Qualified or No Rating. Ratings were provided only in contested races.

The standards for ratings are as follows:

Outstanding: To be rated “Outstanding,” an individual must stand at the top of his or her profession.  He or she must rank among the very best qualified judges or lawyers available for judicial service.  This candidate must have outstanding legal ability and background, as well as wide experience, wisdom, intellect, insight, and impartiality.  To be accorded the highest rating, a candidate should generally have the breadth of vision and outlook that derives from participation in civic, religious, charitable or political organizations of the community, and the work of the organized bar or other professional associations.  In short, each should be a person whose preeminence in the law and as a citizen is widely acknowledged and whose qualifications are virtually hailed by judges and lawyers.

Well Qualified:  To be rated “Well Qualified,” an individual must exhibit similar qualities indicated for the rating of “Outstanding.”  A “Well Qualified” candidate may have less breadth of experience, but shows the promise of all the criteria above.  Although this is a rating lower than “Outstanding,” it is nevertheless a high rating. A “Well Qualified” candidate may have less breadth of experience, but shows the promise of all the criteria above.

Qualified:  To be rated “Qualified,” a candidate must exhibit a fitness for the judicial office he or she seeks.  A candidate given this rating would be considered average on an overall analysis of the factors set forth above.

Not Qualified:  To be rated “Not Qualified,” a candidate must be considered well below average on an overall analysis of the factors set forth above.

* “A Not Qualified rating indicates that in the opinion of the Judicial Candidate Evaluation Committee a candidate is not qualified at the present time for the judicial office which he or she seeks, but the rating should in no way be construed as an adverse reflection on the candidate’s qualification as a practicing attorney.”

No rating: If a candidate does not submit a questionnaire or attend an interview and there is insufficient information available to the Committee on the candidate’s fitness for the judicial office which s/he seeks, then the Committee does not rate the candidate.  However, if there is sufficient information available to the Committee on the Candidate’s fitness for the judicial office which s/he seeks, the Committee may rate such candidate, even in absence of a questionnaire or an interview.

Third Circuit Judge of the Circuit Court Incumbent 6 Year Terms (19) Positions

Margie R. Braxton – Outstanding

James A. Callahan – Outstanding

Eric William Cholack – Outstanding

James R. Chylinski – Outstanding

Gershwin Allen Drain – Outstanding

Wanda Evans – Not Qualified

Patricia Susan Fresard – Outstanding

David Alan Groner – No Rating

Cynthia Gray Hathaway – No Rating

Michael Hathaway – Outstanding

Muriel Diane Hughes – Outstanding

Timothy M. Kenny – Outstanding

Kathleen Macdonald – Outstanding

Sheila Gibson Manning – Outstanding

Bruce U. Morrow – Outstanding

John A. Murphy – Well Qualified

Lita Helene Popke – Outstanding

Mark Slavens – Outstanding

Jeanne Stempien – Well Qualified

Brian R. Sullivan – Outstanding

Third Circuit Judge of the Circuit Court Non-Incumbent 6 Year Term (1) Position

Susan L. Hubbard – No Rating

Gary Jones – No Rating

John J. Sullivan – Qualified

36^th District Court Judge of the District Court Incumbent 6 Year Terms (10) Positions

Lydia Nance Adams – No Rating

Deborah Geraldine Bledsoe Ford – No Rating

Izetta Bright – No Rating

Ella Bully-Cummings – Well Qualified

Ruth C. Carter – No Rating

Katherine L. Hansen – No Rating

Paula G. Humphries – No Rating

Thomasine Jefferson – Not Qualified

Leonia J. Lloyd – Well Qualified

Miriam Martin-Clark – Outstanding

Bill McConico – No Rating

B. Pennie Millender – Well Qualified

Cylenthia LaToye Miller – No Rating

Rohn H. Mitchell – Not Qualified

Wendy M. Readous – No Rating

33rd District Judge of the District Court Incumbent 6 Year Term (1) Position

Gene Ferguson, Jr. – Well Qualified

Jennifer Coleman Hesson – Outstanding

Gordon C. Mobley – Qualified

Edward J. Nykiel – Outstanding

The story just gets stranger

Those who have been watching as Birmingham attorney Norman Yatoomah continues on his quest to prove that the Detroit Police Department botched the investigation of the murder of Tamara Greene, the story just continues to climb the weirdness scale.

He’s got a witness, the first to say under oath, that a fabled party (where Greene is said to have danced) at the Manoogian Mansion not only occurred, but that the guest list was impressive, and he even saw Attorney General Mike Cox get a lap dance. But the witness, Wilson Kay Jr.,  it turns out, has not always been the most upstanding guy, and has a criminal record which casts doubt on his credibility.

The Free Press reports here.

In their opinions

“[T]he majority’s unrestrained decision today is a huge mistake.”

Michigan Supreme Court Justice Elizabeth A. Weaver, dissenting in Tkachik v. Mandeville.

It’s not too often that you’ll find MSC Justices Stephen J. Markman, Michael F. Cavanagh, Maura D. Corrigan and Chief Justice Marilyn Kelly in agreement about much of anything.

But the four of them formed a majority and ruled that when Frank Mandeville’s wife, Janet, died, he unquestionably received fee simple title to property they held as tenants by the entirety.

No surprise there. But they also ruled that Frank owed Janet’s estate some cash because, well, because he was a cad.

In the last 10 years of their marriage, Frank frequently took long trips to foreign countries. He was gone on one such trip for the 18 months before she died. While Frank was abroad, Janet had to pay the mortgage, insurance and taxes on their property by herself.

He never called or wrote, even though he knew she was battling breast cancer. He didn’t even return for her funeral.

Before she died, she did everything she could, short of divorcing Frank, to cut him out of her life. She wrote him out of her will. She transferred her retirement benefits to keep them from him. She even tried to defeat the right of survivorship in the marital properties through a quitclaim deed.

A few months after Janet’s death, Frank strolled into probate court and petitioned to set aside Janet’s will. Susan Tkachik, Janet’s sister and personal representative, had little trouble convincing the court that Frank had “willfully abandoned” Janet, and, under MCL 700.2801(2) was not a “surviving spouse.”

Then Susan went on the offensive. She filed her own probate complaint, arguing that because Frank was not a surviving spouse, he and Janet had owned the marital property as tenants in common, and that he shouldn’t get fee simple title.

But MCL 700.2801(2), said the probate court, has limited application and certainly doesn’t destroy a tenancy by the entireties. Frank gets the property in fee simple.

Susan wasn’t through. She amended her complaint to seek contribution from Frank for all the mortgage, insurance and taxes payments Janet made before her death.

The probate court didn’t go for that one, either. Nor, after a couple of trips up and down the appellate ladder, did the Court of Appeals.

Writing for the majority, Markman, said that’s just not fair. Susan sought equitable relief, and that’s what she’s going to get.

Our consideration of the “special circumstances” of this case leads us to conclude that the following facts are legally sufficient to permit a claim for contribution between tenants by the entirety:

(a) where the decedent spouse has taken sole responsibility for the property maintenance payments while the other spouse had absolutely no personal contact with her for at least the last 18 months of her life;

(b) where the other spouse did not attempt once to communicate with the decedent spouse during this time, even though he acknowledged that he was aware that she was battling cancer;

(c) where the other spouse was disinherited in the decedent spouse’s will;

(d) where the decedent spouse sought diligently, albeit unsuccessfully, to divest the other spouse of his interest in the real properties before she died; and

(e) where the other spouse was deemed a non-surviving spouse under MCL 700.2801(2)(e)(i).

These unusual facts cry out for equitable relief so that “complete justice” can be done and give us assurance that in granting plaintiff’s remedy we are exercising our discretion carefully and responsibly.

Justices Robert P. Young Jr., Weaver and Diane M. Hathaway dissented. Said Young:

There is an old legal adage that “bad facts make bad law.” This phrase has rarely been as true as on the circumstances giving rise to this case. …

With its decision today, the majority now permits posthumous collateral attacks on the validity of marriages in this state where neither spouse has taken the appropriate legal steps to challenge the marriage or the financial equities of the marriage during life.

In doing so, the majority ignores the perfectly adequate legal remedies that our Legislature created in specific contemplation of marital disharmony — specifically, an action for separate maintenance — instead preferring to craft a new remedy recognized nowhere else in the country.

This rule allowing contribution between tenants by the entireties outside the context of a divorce or separate maintenance action is not supported by a single case or authority from any jurisdiction, let alone authority from Michigan.

As such, the new rule the majority creates today is untested and holds unforeseen consequences that reach much further than the narrow and unassuming decision the majority believes it has issued in this case.

Weaver, in her dissent, quoted Young’s statement with approval and labeled the majority’s approach a “huge mistake.”

You got a ticket for what?

Though the Michigan legislature recently cleared the books of a few of these old, and never-enforced, laws there are still a few gems out there, including: promiscuity, profanity and soap-throwing.

My favorite in this Freep report: painting a bird and selling it as a parakeet.

State considering FOIA rules for social media posts

LANSING, Mich. (AP) — The state plans to consider what its employees and agencies post on social media websites as matters of public record and subject to Freedom of Information Act requests.

Michigan is working to finalize a policy that is expected to be completed in August, Kurt Weiss, a spokesman for the state’s Department of Technology, Management and Budget, told the Lansing State Journal for a story published Sunday.

“What the state realizes is like other states, younger generations are getting their messages in other ways, be it Facebook or Twitter,” he said. “So when the state has important information to share, that’s an important avenue we have to look at.”

Lawyer Herschel Fink, who specializes in media law, said it appears the concept is untested in Michigan courts. He said he thinks such activity by government should be considered public record.

“If government and officials are communicating on issues of government policy, using these new means of communication — social media — then the public has to have access to that as well,” he said.

Michigan uses social media websites such as Facebook and Twitter to communicate with the public.

“The whole idea behind FOIA is providing the public with information about all aspects of the people’s business,” Fink said.

How to treat posts by individual officials could stir debate. A Facebook page for a mayor, for example, would be subject to FOIA, Fink said, while that mayor’s personal Facebook page might not. Officials who mix personal and government postings on the same page might be subject to FOIA.

“You cannot blur the line,” he said. “If you use it in any way to communicate as a public official with constituents, you’ve given up any right of privacy.”

Keeping Up With The Candidates, July 23

We’re about a week and a half from the primaries, which means that you won’t get through an episode of “Wheel of Fortune” without seeing an ad supporting/attacking somebody.

As I mentioned last week, the polls this primary season have fluctuated so much throughout the campaign that it’s hard to put much stock into them, even this close to the election. Just last week, House Speaker and Democratic candidate Andy Dillon was sporting a 20 point lead. In a poll done this week by the Detroit News and WDIV-TV, Dillon only leads 34.3 percent to 25.1 percent over Lansing mayor Virg Bernero. Dillon actually lost .7 of a point while Bernero gained 10 points. With 40 percent still undecided, the race could go either way.

On the GOP side, the same poll still shows a close race, but not the three-way 18 percent deadlock we saw last week. The poll shows Attorney General Mike Cox leading Congressman Pete Hoekstra by less than a point (26.4 percent to 25.6 percent) with Ann Arbor businessman Rick Snyder about six points back (20.2 percent). The poll shows Oakland County Sheriff Mike Bouchard with 11 percent. Dr. Tom George’s campaign appears to be on life support with only 1.8 percent. 14.4 percent of those polled are still undecided. While he leads now, Cox’s campaign has to be concerned that 1/4 of the Republicans polled have an unfavorable view of him.

However, there is major variable that could greatly affect the final result: Michigan’s primary election system, which allows any voter to choose which party’s election he wants to vote in, regardless of that voter’s party preference or lack thereof. Dillon may have a 10 point lead among “likely Democratic primary voters” but there’s no guarantee those people will choose between Dillon or Bernero. For whatever reason, a hypothetical moderate Democrat may opt to instead to choose among the Republican candidates, which would preclude them from voting Democratic, opening the door for the more liberal Bernero, who enjoys a plethora of support from unions.

Rick Snyder is actively pursuing the hypothetical voter I described. As the GOP base seems split east and west side by Cox and Hoekstra (they should settle it with a rap battle), who are attacking each other, Snyder sees the independent and Democratic refugees as the key to a victory. He picked up the endorsement of former moderate GOP Congressman Joe Schwarz. He was also endorsed by former Governor Bill Milliken.

The rest of the lead GOP candidates are seemingly in a race to see who can go the furthest right. Last week, we talked about Mike Bouchard’s support of the Arizona immigration law and making Michigan a right-to-work state. This week, Cox, Bouchard and Hoekstra are fighting over who loves the Tea Party more.

Pete Hoekstra took the first step by joining Fox News fixture and GOP Congresswoman Michelle Bachmann’s Tea Party caucus. Cox’s spokesman Nick DeLeeuw responded by saying “First!” …

“Mike Cox has been traveling with the tea party and attending tea party events from the very beginning,” DeLeeuw said. “Mike Cox has been leading that fight, while Pete Hoekstra has been voting against the tea party interests.”

… to which Hoekstra rebutted with, essentially, I was tea party before tea party was cool.

“I was the tea party movement before the tea party,” Hoekstra said.

Pete Hoekstra was the Mad Hatter, and don’t forget it.

Not wanting to be left out of the Tea Party party, Bouchard picked up the key Tea Party endorsement of Joe The Plumber. So he’s got that going for him … which is nice.

In other endorsement news this week, Cox and Dillon picked up the endorsement of The Detroit News. Dillon also picked up the endorsement of Detroit mayor Dave Bing. Bernero picked up a new slew of union endorsements. Hoekstra received the Michigan Teamsters endorsement for the GOP primary, anyway (Why wasn’t this one posted on his website?)

Finally, like the Detroit Free Press did last month, The Detroit News has published feature articles on each one of the gubernatorial candidates, with videos. [Bernero, Dillon, Cox, Hoekstra, Snyder, Bouchard, George. Don’t know when/if the Democratic profiles are coming, but I assume the are.] Some are more interesting than others, like Dr. Tom George’s profile, in which he discusses how all of the tax break talk, without more, will bankrupt the state. Dr. George, when has honesty ever won an election?

Lack of defense expert did not taint CSC conviction

The Michigan Supreme Court has reinstated the first-degree CSC conviction of a man who molested his 6-year-old niece.

The Court of Appeals had granted Robert K. Brannon a new trial after determining defense counsel didn’t adequately investigate the possibility that expert testimony may have produced a “not guilty” verdict.

But the MSC vindicated defense counsel’s choice to not use an expert witness who could have helped the prosecution’s case.

Brannon was tried and convicted in 2008 for the 1995 sexual assault of his then-6-year-old-niece. Witness credibility was a key issue: many years had passed and family members had discussed with the niece “other sexual assault allegations” against Brannon before she accused him.

Brannon’s defense attorney decided not to call any experts to challenge the reliability of a delayed sexual assault report that was possibly prompted by family members’ urgings. He did so after determining that using the experts might also produce testimony that could help convict his client.

COA Judges Karen Fort Hood and Deborah Servitto said counsel made a bad choice and granted Brannon a new trial.

After reviewing testimony at Brannon’s Ginther hearing, Hood and Servitto said had counsel probed further, he would have learned that the experts had other ways to challenge the niece’s credibility besides pointing out the long delay between the assault and the accusation.

In his dissent, Judge Alton Davis said the majority’s decision was based on 20-20 hindsight.

See, The Michigan Lawyer, “In their opinions.”

Last week, the MSC, in a 6-1 ruling, said defense counsel made the right move:

The record clearly established that defense counsel discussed issues of delayed reporting of sexual assault by a child witness with a potential expert witness, and made a reasonable strategic decision to forego expert testimony in light of the possibility that the witness might also provide testimony favorable to the prosecution.

We REMAND this case to the trial court for reinstatement of the defendant’s conviction and for further proceedings not inconsistent with this order.

Justice Michael Cavanagh would have denied leave to appeal.